In re Opinion of the Justices

• Decision Date: 21 January 1920
• Citation: 125 N.E. 849,233 Mass. 603
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 603

125 N.E. 849

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

Jan. 21, 1920.

Request by the Governor and Council for the opinion of the Justices of the Supreme Judicial Court as to whether the Rearrangement of the Constitution of the commonwealth, submitted by the constitutional convention to the people for ratification and adoption at the state election held November 4, 1919, and at such election approved and ratified, is the ‘Constitution or form of government for the commonwealth of Massachusetts.’

1. CONSTITUTIONAL LAW k16-MEANING OF CONSTITUTIONAL INSTRUMENT MUST BE SOUGHT FROM WORDS USED.

The meaning of any constitutional instrument must be sought primarily from the words used, and cannot be controlled by resort to other written records, or to the opinions of individual statesmen, legislators, or publicists, though in appropriate instances other sources of information and enlightenment may be examined, as reports of committees and actions of conventions or Legislatures.

2. CONSTITUTIONAL LAW k5-REARRANGEMENT OF CONSTITUTION NOT THE ORGANIC LAW.

In view of the ‘Rearrangement of the Constitution of the commonwealth,’ adopted by the people at the state election of November 4, 1919 (articles 157, 158), such rearrangement is not the ‘Constitution or form of government for the commonwealth of Massachusetts,’ which is the Constitution of 1780, with its amendments.

The order of the Governor and Council follows:

The Commonwealth of Massachusetts.

Council Chamber, Boston, January 2, 1920.

To the Honorable the Justices of the Supreme Judicial Court:

Gentlemen: At a meeting of the Governor and Council held on December 31, 1919, the following order was adopted, requesting the opinion of the Justices of the Supreme Judicial Court, viz.:

Whereas, In connection with the issue and approval of bonds issued and to be issued by the commonwealth of Massachusetts the question has arisen whether the title of treasurer and receiver general of the commonwealth, as established by the Constitution of 1780 and the amendments thereof, has been changed, by the rearrangement hereinafter referred to, to ‘treasurer of the commonwealth’;

And whereas, under article XI of chapter VI of the Constitution of Massachusetts, as adopted in 1780, it is provided:

‘This form of government shall be enrolled on parchment, and deposited in the secretary's office, and be a part of the laws of the land; and printed copies thereof shall be prefixed to the book containing the laws of this commonwealth, in all future editions of the said laws.’

And whereas, articles 157 and 158 of the Rearrangement of the Constitution of the commonwealth, as adopted at the state election held on the 4th day of November last, provide as follows:

‘Art. 157. Upon the ratification and adoption by the people of this rearrangement of the existing Constitution and the amendmentsthereto, the Constitution shall be deemed and taken to be so rearranged and shall appear in such rearranged form in all future publications thereof. Such rearrangement shall not be deemed or taken to change the meaning or effect of any part of the Constitution or its amendments as theretofore existing or operative.

‘Art. 158. This form of government shall be enrolled on parchment, and deposited in the secretary's office, and be a part of the laws of the land; and printed copies thereof shall be prefixed to the book containing the laws of this commonwealth, in all future editions of such laws.’

Ordered: That the opinion of the justices of the Supreme Judicial Court be required upon the following important question of law:

Whether the Rearrangement of the Constitution of the commonwealth submitted by the constitutional convention to the people for ratification and adoption at the state election held on the 4th day of November last-and at said election approved and ratified-is the ‘Constitution or form of government for the commonwealth of Massachusetts.’

Very respectfully,

[Signed] Charles A. Southworth,

Executive Secretary. To His Excellency the Governor and the Honorable Council of the Commonwealth:

The substance of the important question of law in the order adopted by the Governor and Council on December 31, 1919, copy of which is hereto annexed, is: What is now the Constitution of the Commonwealth? Is it the document entitled ‘Rearrangement of the Constitution,’ approved and ratified by a majority of those voting on the matter at the November election of 1919, or is it the Constitution adopted in 1780 with the subsequent amendments?

[1] It is customary, in ascertaining the meaning of any constitutional instrument, to scrutinize its history and consider the circumstances under which it came into existence. Its meaning must be sought primarily from the words used. It cannot be controlled by resort to other written records, or to the opinions of individual statesmen, legislators or publicists. In appropriate instances, other sources of information and enlightenment may be examined, such as reports of committees, utterances in their deliverative capacity of those presenting such reports and actions of conventions or Legislatures. Courts and judges frequently refer in greater or less detail to the debates in assemblies undertaking to frame Constitutions or amendments to Constitutions in order to throw light upon provisions presented for interpretation. Opinion of the Justices, 126 Mass. 557, 561, 591-593, 598, 601;Legal Tender Cases, 110 U. S. 421, 443, 4 Sup. Ct. 122, 28 L. Ed. 204;United States v. Trans-Missouri Freight Ass'n, 166 U. S. 290, 317, 318, 17 Sup. Ct. 540, 41 L. Ed. 1007;United States v. Wong Kim Ark, 169 U. S. 649, 697, 698, 699, 18 Sup. Ct. 456, 42 L. Ed. 890;Orr v. Gilman, 183 U. S. 278, 285, 22 Sup. Ct. 213, 46 L. Ed. 196. See Legal Tender Cases, 12 Wall. 457, 652-656, 20 L. Ed. 27, and United States v. St. Paul, Minneapolis & Manitoba Railway, 247 U. S. 310, 318, 38 Sup. Ct. 525, 62 L. Ed. 1130.

The constitutional convention convened pursuant to St. 1916, c. 98, after somewhat protracted sessions in 1917 and 1918, and after having proposed three amendments balloted upon at the election of 1917 and after having voted to propose for the popular vote at the election of 1918 19 additional amendments to the Constitution, provided for the appointment of a ‘committee on rearrangement of the Constitution.’ The duty of that committee as expressed in the order for its appointment was, ‘after the submission to the people of all the amendments proposed,’ to ‘arrange the Constitution, as amended, under appropriate titles and in proper parts, chapters, sections and articles, omitting all sections, articles, clauses and words not in force and making no substantive change in the provisions thereof.’ Accordingly a committee of 19 members was appointed. Five were selected as a subcommittee to prepare the rearrangement. That subcommittee made a report in May, 1919, consisting of a draft of a proposed rearrangement. Article 159 of that draft corresponded to Article 157 quoted in the order of the Governor and Council. It was in these words:

‘Art. 159. Upon the ratification and adoption of this constitution by the people, the Constitution heretofore existing, with all amendments thereto, shall be deemed and taken to be revised, altered or amended accordingly. All laws not inconsistent with this constitution, and all rights, remedies, duties, obligations, and penalties, which exist and are in force when this Constitution is ratified and adopted, shall continue to exist and be in force as heretofore until otherwise provided.’

Without doubt the effect of that article, if validly adopted as a part of the fundamental law, would have been to create a new Constitution and to substitute it for the preexisting Constitution with all its amendments. If so adopted the old Constitution and amendments would have ceased to be the charter of government and the new Constitution would have taken its place. We are not aware of any records of the proceedings of the committee of 19 on rearrangement concerning this report of the subcommittee. It may have been felt that article 159 as drafted went beyond the power conferred by the convention upon this committee which was simply to arrange the existing Constitution and amendments and not to revise, codify or otherwise draft a new Constitution. The one outstanding fact, however, is that the full committee having before it the article numbered 159 just quoted, unequivocally providing for a new Constitution, rejected and refused to recommend that article, but in its stead framed and reported the very different article 157 quoted in the order of the Governor and Council. The conclusion is irresistible that a radical change of meaning was intended by the rejection of that article numbered 159 and the insertion in its place of the present article 157.

The committee on rearrangement of the Constitution submitted to the convention the ‘Text of the Rearrangement,’ a ‘Report’ and a ‘Memorandum’ accompanying its report. In its ‘Report’ are found these words:

‘The object of the order [that is the order whereby provision was made for the rearrangement of the Constitution] was, as the committee understands it, to have the existing Constitution and its amendments, sixty-six in all, brought together in one body, omitting all ‘sections, articles, clauses and words' which by the lapse of time, or by repeal, or annulment, or otherwise have ceased to be in force, and making such rearrangement, with the changes in phraseology and punctuation necessarily involved, as would form a consistent and connected whole. The committee are of opinion that it manifestly was not intended that they should draft a new Constitution embodying the existing Constitution and amendments, and they have not attempted to do so. They have considered that their duty in that regard was confined to one of rearrangement. The committee have construed the order to mean that...